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Draft Environmental Law and Policy for Namibia 2011

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Draft Environmental Law and Policy for Namibia 2011 Environmental Law and Policy in Namibia Edited by Oliver C Ruppel Professor of Law, Faculty of Law, University of Stellenbosch, South Africa Katharina Ruppel-Schlichting Senior Legal Researcher, Legal Research and Development Trust of Namibia (LRDT) 2011 Hanns Seidel Stiftung Legal Research and Development Trust of Namibia PO Box 22524 PO Box 11334 Windhoek Windhoek Email: [email protected] Website: http://www.hsf.org.na Tel +264 (0)61 237373 Environmental Law and Policy in Namibia For additional materials and information see www.environment-namibia.net ISBN 978-3-939886-01-3 (Germany) ISBN 978-99916-849-4-9 (Namibia) Copyright Hanns Seidel Foundation (2011) and authors. The content of the articles, including any final errors or omissions that remain, is the sole responsibility of the individual contributors. The editors have made every effort to acknowledge the use of copyright material. Should any infringement of copyright have occurred, please contact the editor, and every effort will be made to rectify omissions or errors, in the event of a reprint or new edition. Co-published by OrumbondePress.na & Welwitschia Verlag Dr. A. Eckl, Essen. Printed by John Meinert Printing (Pty) Ltd ii TABLE OF CONTENTS PREFACE xi ACKNOWLEDGEMENTS xiii THE EDITORS xiv THE CONTRIBUTORS xvi EXECUTIVE SUMMARY xxi LIST OF ABBREVIATIONS xxv INTRODUCTION: NAMIBIA AND ITS LEGAL SETUP 1 Oliver C Ruppel & Katharina Ruppel-Schlichting 1 Namibia in a Nutshell: Facts and Figures 2 The Legal Setup in Namibia 3 The Laws 4 The Court System 4.1 The Supreme Court 4.2 The High Court 4.3 The Lower Courts 4.4 The Magistrates’ Courts 4.5 The Community Courts CHAPTER 1: INTRODUCING ENVIRONMENTAL LAW 13 Katharina Ruppel-Schlichting 1 Terminology 2 Foundations of Environmental Protection 3 Functions of Environmental Law 4 Historical Development of Environmental Law 5 Major Environmental Concerns in Namibia 5.1 Land Degradation and Soil Erosion 5.2 Deforestation 5.3 Water management 5.4 Climate Change 5.5 Waste and Pollution iii CHAPTER 2: INTERNATIONAL ENVIRONMENTAL LAW FROM A NAMIBIAN PERSPECTIVE 33 Oliver C Ruppel 1 The Application of International Law in Namibia 2 Sources of International Environmental Law 2.1 International Conventions: Multilateral Environmental Agreements (MEAs) 2.1.1 How MEAs are made 2.1.2 The General Scope of MEAs 2.1.3 Typical Structure of MEAs 2.1.4 Compliance and Enforcement of MEAs 2.2 International Customary Law 2.3 General Principles of International Environmental Law 2.4 Judicial Decisions and Teachings 3 Multilateral Environmental Agreements Relevant for Namibia 3.1 Namibia’s Membership to Global MEAs 3.2 The African Union (AU) 3.2.1 The Environment and the AU’s General Legal Framework 3.2.2 The African Convention on the Conservation of Nature and Natural Resources 3.2.3 Bamako Convention on the Ban of the Import into Africa and the Control of Trans- boundary Movement and Management of Hazardous Wastes within Africa 3.2.4 The African Nuclear Free Zone Treaty (Treaty of Pelindaba) 3.2.5 The Phyto-Sanitary Convention for Africa 3.2.6 Enforcing Environmental Provisions on the Regional Level 3.3 The Southern African Development Community (SADC) 3.3.1 SADC Protocols 3.3.2 Other Relevant Instruments 3.3.3 Enforcement of Environmental Provisions on the Sub-Regional Level 4 International Environmental Institutions in Namibia CHAPTER 3: FOUNDATIONS, SOURCES AND IMPLICATIONS OF NATIONAL ENVIRONMENTAL LAW 79 Oliver C Ruppel 1 The Namibian Constitution 2 Roman-Dutch and Common Law 3 Statutory Law 3.1 The Environmental Management Act 3.2 The Nature Conservation Ordinance 3.3 Legislation on Water 3.4 Legislation on Fisheries and Marine Resources 3.5 Legislation on Land and Agricultural Production 3.6 Legislation on Forestry 3.7 Legislation on Energy and Mining 3.8 Selected Environmental Legislation in Preparation 4 Customary Law 5 Criminal Aspects of Environmental Law 6 Development Framework 6.1 Namibia’s Green Plan 6.2 Vision 2030 and the National Development Plans iv 7 Policy Framework 7.1 Policies on Environmental Assessment and Biotechnology 7.2 Policies on Land and Agriculture 7.3 Policies on Water 7.4 Policy on Forests 7.5 Policies on Tourism 8 Selected Strategies and Action Plans 8.1 National Biodiversity Strategy and Action Plan 8.2 Namibia’s Proposed Climate Change Strategy and Action Plan 8.3 Aquaculture Strategic Plan 8.4 Strategic Action Plan for the Implementation of Renewable Energy Policies 8.5 Forestry Strategic Plan CHAPTER 4: PRACTICAL IMPLICATIONS OF ENVIRONMENTAL MANAGEMENT IN NAMIBIA:THE CASE STUDY OF OHORONGO 107 Peter Koep & Meyer van den Berg 1 Background 2 Ohorongo’s mining activities 3 The Environmental Impact Assessment 3.1 Water 3.2 Vegetation 3.3 Animals 3.4 Dust 3.5 Noise 3.6 Air Pollution 4 Rehabilitation CHAPTER 5: SELECTED SECTORAL ASPECTS OF ENVIRONMENTAL LAW IN NAMIBIA 117 I LEGAL PROTECTION OF BIODIVERSITY IN NAMIBIA Manfred O Hinz & Oliver C Ruppel 1 Introduction 2 Biodiversity in Perspective 3 International Environmental Law Pertinent to Biodiversity Protection in Namibia 4 Biodiversity Protection under National Environmental Law II WATER AND FISHERIES RELATED STATUTORY LAW AND POLICY IN NAMIBIA: AN OVERVIEW Shirley Bethune & Oliver C Ruppel 1 The Policy Framework 1.1 The Water Supply and Sanitation Policy 1.2 The National Water Policy White Paper 1.3 Namibia’s Draft Wetland Policy 1.4 Namibia’s Aquaculture Policy v 2 The Statutory Framework 2.1 The Water Act 2.2 The Water Resources Management Act 2.3 The Namibia Water Corporation Act 2.4 Marine Resources Act 2.5 The Aquaculture Act 2.6 The Inland Fisheries Resources Act 2.7 Prevention and Combating of Pollution at Sea by Oil Act III REFORM OF RURAL WATER SUPPLY Thomas Falk, Bernadette Bock & Michael Kirk IV LAND AND AGRICULTURAL LAWS AND POLICIES RELEVANT FOR ENVIRONMENTAL PROTECTION IN NAMIBIA Shirley Bethune & Oliver C Ruppel 1 Land and Agricultural Policies 1.1 Land-use Planning: Towards Sustainable Development 1.2 The National Land Policy 1.3 The National Resettlement Policy 1.4 The National Land Tenure Policy 1.5 The National Agricultural Policy 1.6 The National Drought Policy and Strategy 1.7 The Regional Planning and Development Policy 2 Land and Agriculture Related Legislation 2.1 The Communal Land Reform Act 2.2 The Agricultural Pests Act 2.3 The Soil Conservation Act 2.4 The Agricultural (Commercial) Land Reform Act V MINING AND ENERGY IN NAMIBIA Peter Koep & Meyer van den Berg 1 Mining Laws and Policy 1.1 The Minerals (Prospecting and Mining) Act 1.2 The Minerals Policy 1.3 The SADC Protocol on Mining 2 Energy Laws and Policy 2.1 The Petroleum (Exploitation and Production) Act 2.2 The Atomic Energy and Radiation Protection Act 2.3 The Petroleum Product and Energy Act 2.4 The Draft Gas Bill Proposed Gas Act 2.5 The Electricity Act 2.6 Draft White Paper on the Energy Policy of NamibiaEnergy Policy 2.7 Namibia’s Uranium and Nuclear Energy Policy 2.8 The Model Petroleum Agreement 2.9 The SADC Protocol on Energy vi CHAPTER 6: CUSTOMARY LAW AND THE ENVIRONMENT 169 Manfred O Hinz 1 Introduction 2 Post-Independence Conservation Policy in Namibia: Gateway for Customary Environmental Law 3 Customary Law and Customary Environmental Law within the General Legal System 4 Conservancies and Customary Law 5 BIOTA Research on Customary Law and the Environment 6 The Protection of Traditional Knowledge on the International and National Agenda 7 Concluding Remarks CHAPTER 7: WESTERN INTELLECTUAL PROPERTY RIGHTS REGIMES AND TRADITIONAL KNOWLEDGE PROTECTION SYSTEMS IN AFRICA 201 Eliamani Laltaika 1 Introduction 2 Defining Traditional Knowledge and Associated Genetic Resources 3 Biopiracy 4 Western Intellectual Property Regime versus Community Rights 5 The Convention on Biological Diversity: A New Era for GR Governance? 6 Intellectual Property in Plant Genetic Resources for Food and Agriculture and TK 6.1 The International Undertaking on Plant Genetic Resources 6.2 The TRIPS Agreement and UPOV 6.3 Historical Backdrop 6.4 The Pinch of IPR to Farmers 7 African Approach 7.1 The OAU Model Legislation on the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources 7.2 The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore 8 The Need for a Paradigm Shift 9 Concluding Remarks CHAPTER 8: HUMAN RIGHTS AND THE ENVIRONMENT 219 Oliver C Ruppel 1 Introduction 2 Human Rights Categories 3 Constitutionality of Environmental Human Rights? 3.1 The Preamble 3.2 Fundamental Rights and Freedoms 3.3 Article 6: The Right to Life 3.4 Article 8: Respect for Human Dignity 3.5 Article 10: Equality and Freedom from Discrimination 3.6 Article 15: Children’s Rights 3.7 Articles 18 and 5: Administrative Justice 3.8 Article 19: The Right to Culture vii 3.9 Article 25: Enforcement of Fundamental Rights and Freedoms 3.10 Article 144: International Law 4 Concluding Remarks CHAPTER 9: TRADE, ENVIRONMENT AND SUSTAINABLE DEVELOPMENT 241 Oliver C Ruppel 1 The Trade Environment in Namibia 1.1 Trade Related Legislation (also relevant to the Environment) 1.2 Import Practices 1.3 Export Practices 1.4 Agriculture 1.5 Fisheries 1.6 Mining 1.7 Energy 1.8 Electricity 1.9 Manufacturing 1.10 Services 1.11 Transport 1.12 Tourism 1.13 Foreign Investment 2 International Trade, the Environment and the Development Debate 2.1 The Trade Perspective 2.2 The Environmental Perspective 2.3 The Development Perspective 2.4 Sustainable Development: The Answer to the Dilemma? 2.5 The Role of Trade for Sustainable Development
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